Hugee v. Gadsden

• Decision Date: 08 May 2019
• Docket Number: 2017–05784,Docket No. V–8484–09
• Citation: 172 A.D.3d 863,100 N.Y.S.3d 297
• Parties: In the Matter of Danieller I. HUGEE, Appellant, v. Anthony GADSDEN, Respondent.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 863

100 N.Y.S.3d 297

In the Matter of Danieller I. HUGEE, Appellant,

v.Anthony GADSDEN, Respondent.

2017–05784

Docket No. V–8484–09

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 11, 2019

May 8, 2019

Linda C. Braunsberg, Staten Island, NY, for appellant.

Larry S. Bachner, New York, NY, for respondent.

Janet Neustaetter, Brooklyn, N.Y. (Chai Park of counsel), attorney for the child.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In a child custody proceeding, the mother appeals from an order of the Family Court, Kings County (Robert D. Mulroy, J.), dated May 15, 2017. The order, upon the granting of the father's motion, made at the close of the mother's case, to dismiss the petition for failure to make out a prima facie showing of changed circumstances, dismissed, with prejudice, the mother's petition to modify a prior order of the same court dated May 12, 2011, which had awarded custody of the parties' child to the father.

ORDERED that the order dated May 15, 2017, is modified, on the law, by deleting the provision thereof dismissing the mother's petition with prejudice, and substituting therefor a provision dismissing the petition without prejudice; as so modified, the order dated May 15, 2017, is affirmed, without costs or disbursements.

The subject child was born to the parties in March of 2008. The child has lived with the father since the mother was incarcerated in 2010, and on May 12, 2011, the Family Court issued an order awarding the father custody of the child. On July 15, 2016, the mother filed the instant petition seeking custody of the child. The mother alleged in the petition that the father had tried "everything in his power" to interfere with her parental access with the child. The mother further alleged that the father did not allow her to assist with the child's grooming and educational needs, and that the child had failed the second grade.

At the ensuing hearing, the mother testified that she had parental access with the child every two weeks, and presented no evidence that the father had done anything to interfere with this parental access. She further conceded that she didn't know "anything about [the child's] school, I don't know what school she goes to, I don't know anything about her medical."

Regarding the child's hygiene, the mother testified only that the child does not like to bathe while the mother has parental access. The mother presented no evidence of the child's hygiene habits when she is with the father, nor did the mother present any evidence regarding the father's caregiving. The mother further conceded that she does not discipline the child. The mother also conceded that she spent five years in federal prison, and remains on probation, and that the child did not have her own bed at the mother's residence.

At the close of the mother's direct case, the father moved to dismiss the petition on the ground that the mother failed to meet her prima facie burden of showing a change in circumstances. The Family Court granted the motion, holding that "there is no indication that the child is not being properly cared for." In an order dated May 15, 2017, the court dismissed the mother's petition with prejudice. The mother appeals.

"An order of custody or [parental access] may be modified only upon a showing that there has been a subsequent change of circumstances such that modification is required to ensure the best interests of the child" ( Matter of C.H. v. F.M., 130 A.D.3d 1028, 1028, 14 N.Y.S.3d 482 ; see Matter of Bacchus v. McGregor, 147 A.D.3d 1049, 1050, 48 N.Y.S.3d 683 ). In deciding a motion to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner's evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom (see Matter of Cruz v. Figueroa, 132 A.D.3d 669, 17 N.Y.S.3d 503 ; Matter of C.H. v. F.M., 130 A.D.3d at 1028, 14 N.Y.S.3d 482 ). "The question of credibility is irrelevant, and should not be considered" ( Gonzalez v. Gonzalez, 262 A.D.2d 281, 282, 691 N.Y.S.2d 122 ; see Matter of Bacchus v. McGregor, 147 A.D.3d at 1050, 48 N.Y.S.3d 683 ).

Here, we agree with the Family Court's determination to grant the father's motion to dismiss the petition on the ground that the mother failed to meet her prima facie...